Purdue v. Norris
Filed 8/21/07 Purdue v. Norris CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
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PAULETTE PURDUE, Plaintiff and Respondent, v. NICOLE PURDUE NORRIS, as Trustee, etc., Defendant and Appellant. | C052561 (Super.Ct.No. SPR4031) |
This lawsuit pits mother against daughter in a dispute over the distribution of property from a living trust created by Lisette Keane, their mother and grandmother, respectively.
In the underlying litigation, Paulette Purdue (Paulette[1]) challenged the validity of her mother Lisettes 2005 amendment to an inter vivos trust, and sought to remove her daughter Nicole Purdue Norris (Nicole) as trustee of Lisettes trust on the grounds (among others) that Lisette was incompetent at the time of the 2005 amendment and Nicole had exerted undue influence over her. Paulette sought to reinstate a 2004 version of the trust in which Paulette, not Nicole, would have been trustee after Lisettes death. However, the court found Lisette was competent at the time of her 2005 trust amendment, and that Nicole did not exert undue influence over her.
This judgment roll appeal by Nicole, concerns the trial courts additional finding that--although the evidence adduced at trial ultimately failed to support her--Paulette had probable cause to bring the petition and therefore is not foreclosed from benefiting by the no-contest clause in the operative trust document. (Prob. Code, 21307.) Nicole challenges the courts finding that the no contest clause may not be enforced against Paulette. We find no error and shall affirm the judgment.
BACKGROUND
The Trust and Amendments
In 1999, Lisette created a trust to hold title to her real property and other assets, and provide for the distribution of the property to her children and grandchildren upon her death. (Lisette also executed a will at the same time but the validity of the will is not at issue in this proceeding.) Lisette named Nicole as the successor trustee of her trust and executor of her will.
The trust contained a no contest clause providing that any beneficiary contesting its validity would forfeit the right to any interest given to him or her by the trust.
In 2004, Lisette executed a first amendment to her trust (the 2004 trust amendment), and a first codicil to her will. The 2004 trust amendment altered the sums to be distributed to her various children and grandchildren upon her death. She nominated Paulette as the executor of her will, and also executed a durable power of attorney appointing Paulette as attorney in fact, and an advance health care directive designating Paulette as her agent for health care decisions. In May 2005, Lisette executed a second amendment (the 2005 trust amendment), which designated Nicole successor trustee. Lisette also changed her power of attorney and advance heath care directive, designating Nicole as her attorney in fact and agent for health care decisions.
The Petition to Invalidate the 2005 Trust Amendment
Lisette died in June 2005 at the age of 80.
Within one week, Paulette filed a petition claiming to act as trustee under the 2004 trust amendment, and obtained an order enjoining Nicole from disposing of any trust assets, freezing Lisettes bank accounts, and ordering Nicole to render an accounting, on the theory Nicole was asserting authority over Lisettes assets under the original--superseded--1999 trust document.
Thereafter, Paulette apparently learned for the first time of the existence of the 2005 trust amendment. She then brought a second (instant) petition, seeking to nullify the 2005 trust amendment on the grounds (among others) that (1) around the time of its execution, Lisette lacked sufficient mental capacity because she was then frail, ill and medicated, confused, and suffered from periodic memory loss; and (2) it was the result of undue influence by Nicole, who took advantage of her grandmothers frail condition to move into Lisettes home, take over her financial affairs, withdraw almost $250,000 from Lisettes bank account, and isolate Lisette from other family members. Paulette also alleged Nicole was instrumental in creating the 2005 trust amendment which dramatically changed Lisettes disposition of her trust assets to favor Nicole, in that she located an attorney unacquainted with Lisette to prepare the document, and drove Lisette to the attorney on a day on which Lisettes medical records indicate she was very ill.
In her answer, Nicole denied Paulettes allegations and asked that the court enforce against Paulette the no contest clauses of Lisettes 2005 trust amendment and will.
Following a three-day court trial--for which no reporters transcript appears in the record--the court prepared a lengthy written tentative decision which contains its factual findings that Paulette failed to establish that (1) Lisette lacked mental capacity to make the 2005 trust amendment or (2) that the 2005 trust amendment resulted from undue influence by Nicole.
The court also rejected Nicoles assertion that Paulette should suffer the consequences of the no contest provisions as a result of bringing the petition. In making this decision, the court cited Estate of Peterson (1999) 72 Cal.App.4th 431 for the propositions that Probate Code section 21307 relieves the beneficiary of a will from the penalty of a no contest provision if the person against whom the contest is directed is one who could improperly influence or control the testator and [t]he contestant is protected if he or she had probable cause to believe such influences existed. The court ruled that the no contest provisions could not be enforced against Paulette; In this case, it cannot be said that [Paulette] lacked probable cause for bringing the contest. [Paulette] felt she was kept from seeing her mother during her last months and, not trusting her daughter, suspected that this was a component of an attempt by [Nicole] to unduly influence Lisette to change her will or trust. [Paulette] knew her mother was elderly and in declining health and, by her observation, felt her mother was slipping mentally. Nor was [Paulette] privy to the meeting her mother had with attorney Graupensberger, at which time he assessed her as being mentally competent to make changes to her trust. Thus, in this case, while [Paulette] may have harbored suspicions about undue influence, ultimately, the evidence proved otherwise. In light of this, it would not be appropriate to enforce the no contest provisions against [Paulette].
Nicole sought reconsideration of the courts tentative decision against enforcement of the no contest clause against Paulette, arguing that the court misinterpreted Estate of Peterson, supra, 72 Cal.App.4th 431.
The court declined to reconsider and adopted the tentative decision as its statement of decision.
DISCUSSION
On appeal, Nicole renews her contention that the trial court erred in refusing to enforce the no contest clause of the 2005 trust amendment against Paulette after Paulettes unsuccessful attempt to have the 2005 trust amendment declared invalid.
No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. (Burch v. George (1994) 7 Cal.4th 246, 254; Estate of Peterson, supra, 72 Cal.App.4th at p. 436.) A beneficiarys challenge based on undue influence constitutes an attack on the validity of an instrument and is a contest. (Estate of Markham (1941) 46 Cal.App.2d 307, 308-312, 315-316.)
However, Probate Code section 21307 ( 21307) precludes enforcement of a no contest clause against a beneficiary who contests, with probable cause, a provision in a will benefiting a person who drafted or transcribed the will, gave directions to the drafter, or acted as a witness to the instrument.[2]
Section 21307 was examined in Estate of Peterson, supra, 72 Cal.App.4th 431. In that case, the court held that the party against whom the contest is directed need not have actually drafted the instrument, have given directions to the drafter, or witnessed the instrument in order to exempt the challenger from the effect of the no contest provision: it is enough that the person contesting have good cause or probable cause to believe the defendant was such a person. (Id. at p. 437.) The policy underlying section 21307 arises from the trust and power a testator or trustor necessarily places in those who participate in the drafting of a will or trust instrument. Because such participants are in a position where they can easily control or influence the distribution of property under the instrument to their benefit and contrary to the true intent of the trustor or testator, the Legislature has deemed it appropriate to guard against potential abuses by enacting section 21307. [Citation.] (Id. at p. 436.) Accordingly, [t]he objective of the section is to protect against improper influences in the preparation of the instrument. Proof that the contestant had probable cause to believe such influences existed suffices to prevent potential abuses and at the same time ensure that the testators true wishes are carried out. (Id. at p. 437.)
On appeal, Nicole makes two contentions: that (1) the trial court misinterpreted Estate of Peterson and section 21307 by an overbroad application of those authorities and (2) no substantial evidence exists to support the trial courts decision not to enforce the No Contest clause.
Her arguments are undermined by the state of the record on appeal. Appellate courts must presume the trial courts judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must present not only an analysis of the facts and legal authority on each point made; he must support those arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Because Nicole has provided us with only the clerks transcript, we must treat this as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) Therefore, we must conclusively presume that the evidence is ample to sustain the [trial courts] findings[.] (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)
We consider first Nicoles assertion the court misapplied section 21307 or misunderstood the holding of Estate of Peterson. To be cognizable on appeal, this complained-of error must appear on the face of the record. (National Secretarial Service, Inc. v. Froehlich, supra, 210 Cal.App.3d at p. 521.)
It does not. In support of her contention that the court misread the law, Nicole relies upon the evidence cited by the court in its tentative decision in support of its finding Paulette qualifies for an exemption under section 21307 from the no contest provision of the 2005 trust amendment, together with its order re: statement of decision. But we do not presume--absent a complete record--that the evidence noted by the court in a statement of decision represents all of the evidence it heard or considered. (See In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736 [a statement of decision is sufficient if it fairly discloses the courts determination as to the ultimate facts and material issues in the case]; see also Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1118] [statement of decision is not required to contain an express finding of fact on every factual matter controverted at trial, if it sufficiently disposes of all the basic issues in the case]; In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 686-687 [trial courts statement of decision is required only to state ultimate rather than evidentiary facts].) Rather, we assume the evidence was ample to support the courts findings and this evidentiary prescription cannot be defeated on the face of a record lacking a reporters transcript. Consequently, we must conclude Nicole has failed to show on the face of the record that the trial court misapplied the law.
As to her second claim of error, we repeat that we cannot entertain Nicoles express contention that no evidence was adduced at trial that Paulette harbored the requisite probable cause because there is no reporters transcript of the trial in the record. In fact--as we have said--under such circumstances we must presume the opposite. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) Moreover, we are unpersuaded by Nicoles apparent attempt to circumvent the operation of the rules applicable to judgment roll appeals by her insistence that [t]he only way to determine if [Paulette] possessed the requisite probable cause or reasonable suspicion that [Nicole] was a person identified in Probate Code 21307 (b) is to review the allegations of her petition, rather than the evidence adduced at trial. Allegations are not evidence. Paulette testified at trial and we must assume on appeal that evidence elicited from her (and otherwise) was sufficient to support the trial courts refusal to enforce the no contest clause against Paulette.
DISPOSITION
The judgment is affirmed.
MORRISON , Acting P.J.
We concur:
ROBIE , J.
BUTZ , J.
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[1] We refer to the parties by their first names for clarity and simplicity.
[2] Probate Code section 21307 states: A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with probable cause contests a provision that benefits any of the following persons:
(a) A person who drafted or transcribed the instrument.
(b) A person who gave directions to the drafter of the instrument concerning dispositive or other substantive contents of the provision or who directed the drafter to include the no contest clause in the instrument, but this subdivision does not apply if the transferor affirmatively instructed the drafter to include the contents of the provision or the no contest clause.
(c) A person who acted as a witness to the instrument.
